Weekly Case Digests – April 1, 2019 – April 5, 2019

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Debara DeCamp v. Nancy A. Berryhill

Case No.: 18-2105

Officials: WOOD, Chief Judge, KANNE, and ST. EVE, Circuit Judges.

Focus: ALJ Error – Disability Benefits

Debara DeCamp, a 55-year old woman, challenges the denial of her applications for Disability Insurance Benefits and Supplemental Security Income, in which she claimed disability based on a benign brain tumor, neck and back issues, and bipolar disorder. DeCamp argues that the administrative law judge erred by failing to (1) evaluate properly DeCamp’s limits with concentration, persistence, or pace, (2) support her decision to limit DeCamp to 10 percent off-task time for purposes of assessing residual functional capacity (“RFC”), and (3) support her adverse credibility determination. We agree that the ALJ did not properly address DeCamp’s limitations in concentration, persistence, or pace, and on that basis we remand.

Vacated and remanded

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7^th Circuit Court of Appeals

Case Name: BMO Harris Bank, N.A.

Case No.: 17-3073

Officials: EASTERBROOK, KANNE, and BRENNAN, Circuit Judges.

Focus: Bankruptcy – Foreclosure

Mark Anderson and Walter Kaiser jointly borrowed about $700,000 from BMO Harris Bank; the loan was secured by a mortgage. They did not pay, and the Bank filed a foreclosure action in state court. That action was put on hold when Anderson and his wife (who need not be mentioned again) commenced a bankruptcy proceeding. After the Bank asked Bankruptcy Judge Cox to lift the automatic stay under 11 U.S.C. §362 she entered an order granting “full and complete relief from the Automatic Stay of Section 362 to permit BMO HARRIS BANK to proceed with the pending State Court foreclosure litigation with respect to the property commonly known as 151 W. Wing St., Unit 905, Arlington Heights, Illinois 60005 as more particularly described in the Motion for Relief.”

Allowing the state judiciary to enter a deficiency judgment in a foreclosure proceeding does not undermine any function of bankruptcy law. If the state judge had held that Kaiser and Anderson are jointly and severally liable for the $650,000 deficiency, the Bank’s claim still would have re turned to the bankruptcy court for it to resolve any disputes about the priority of competing claims against Anderson’s assets and whether any particular debt should be discharged. Trying to get around the application of §1738 or reading Judge Cox’s order narrowly to compel the sort of claim spliking forbidden by state law would not serve any goal of federal bankruptcy policy. It would simply prolong litigation. (Indeed, on the Bank’s current understanding the state court could and perhaps should have left the foreclosure proceeding in stasis until it had indubitable authority to resolve the whole case. That would not have served either the Bank’s interests or Anderson’s.)

The Bank had its chance in state court and did not use it. It is too late to hold Anderson liable for a deficiency judgment. The Bank must be content with what it can collect from Kaiser.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Leroy Washington v. Marion County Prosecutor

Case No.: 17-2933

Officials: FLAUM, RIPPLE, and MANION, Circuit Judges.

Focus: Statutory Interpretation

Indianapolis police stopped a car driven and owned by Leroy Washington in September 2016. Washington was arrested and ultimately charged with multiple Indiana crimes, including dealing in marijuana. Police seized his vehicle for forfeiture. Washington brought a class action constitutional challenge. The district court declared Indiana’s vehicle forfeiture statute (I.C. 34-24-1-1(a)(1) read in conjunction with other provisions in the same chapter) unconstitutional. The Marion County Prosecutor appealed. While the appeal pended, Indiana amended the statute. The Prosecutor argues the amendments fix any constitutional problems, but Washington disagrees. We remand to the district court to address the amendments.

Motion denied. Remanded

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7^th Circuit Court of Appeals

Case Name: Courtney Webster, et al. v. CDI Indiana, LLC

Case No.: 18-3080

Officials: WOOD, Chief Judge, and EASTERBROOK and ST. EVE, Circuit Judges.

Focus: Negligence – Malpractice

This medical malpractice lawsuit arises from a radiologist’s negligence. Courtney Webster had a CT scan performed at CDI Indiana, LLC’s (CDI) diagnostic imaging facility in Carmel, Indiana. The radiologist, an independent contractor hired by Medical Scanning Consultants (MSC), missed Courtney’s cancer, which then festered for over a year before being diagnosed.

Courtney and her husband, Brian Webster, sued CDI. CDI, in response, insisted that the Websters could not hold it liable because CDI did not directly employ the radiologist. The district court rejected this argument and applied Indiana’s apparent agency holding in Sword v. NKC Hosp., Inc., 714 N.E.2d 142, 152 (Ind. 1999), which instructs that a medical provider is liable if a patient reasonably relied on its apparent authority over the wrongdoer. The jury returned a $15 million verdict in favor of the Websters. We agree with the district court’s analysis and so we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: David M. Jones v. Dushan Zatecky, Warden

Case No.: 17-2606

Officials: WOOD, Chief Judge, and MANION and ROVNER, Circuit Judges.

Focus: Ineffective Assistance of Counsel

At the time of David Jones’s arrest and prosecution in 2005, Ind. Code § 35-34-1-5 (1982) identified an “omnibus date” and allowed prosecutors to make substantive amendments to pending charges only up to 30 days before the omnibus date. Seven years earlier, in a case called Haak v. State, 695 N.E.2d 944, 951 (Ind. 1998), the Indiana Supreme Court had confirmed the strict nature of this deadline. Disregarding this rule, in Jones’s case the state moved nine days after the omnibus date to amend the charging instrument to add a new and highly consequential charge of criminal confinement. Jones’s attorney did not object to this untimely amendment, and Jones was ultimately convicted of the confinement charge.

According to the state, there is nothing unique about Jones’s case. It tells us that defense attorneys around Indiana routinely ignored both the clear text of the statute and the Haak decision and allowed prosecutors to make untimely amendments. If that is an accurate account, it is hardly reassuring. For a lawyer to fail to take advantage of a clear avenue of relief for her client is no less concerning because many others made the same error—if anything, it is more so.

We have seen this problem before. See Shaw v. Wilson, 721 F.3d 908, 911 (7th Cir. 2013). We held in Shaw that following the crowd is no excuse for depriving a criminal defendant of his constitutional right to the effective assistance of counsel. Id. at 917. We accordingly held that Shaw was entitled to the issuance of a writ of habeas corpus under 28 U.S.C. § 2254, based on his attorney’s failure to object to an untimely amendment to his charges under the same Indiana law now before us. Id. at 910. We conclude that Jones is entitled to the same relief.

Adhering to Shaw, we thus VACATE the district court’s decision to deny Jones’s petition for a writ of habeas corpus and REMAND with instructions to issue the writ within 120 days with respect to his conviction for criminal confinement only and to make any necessary adjustments in his sentence on the two unchallenged counts of conviction.

Vacated and remanded

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7^th Circuit Court of Appeals

Case Name: Trinity 83 Development, LLC, v. ColFin Midwest Funding, LLC

Case No.: 18-2117

Officials: EASTERBROOK, BARRETT, and SCUDDER, Circuit Judges.

Focus: Bankruptcy – Release of liability

In 2006 Trinity 83 Development borrowed about $2 million from a bank, giving in return a note and a mortgage on certain real property. In 2011 the bank sold the note and mortgage to ColFin Midwest Funding. ColFin relied on Midland Loan Services to collect the payments. In 2013 Midland recorded a document (captioned “satisfaction”) stating that the loan had been paid and the mortgage released. But the loan was still outstanding, and Trinity continued paying. In 2015 ColFin realized Midland’s mistake and recorded a document cancelling the satisfaction. Soon afterward Trinity stopped paying, and ColFin filed a foreclosure action in state court.

Trinity maintains that the release erroneously filed in 2013 abrogated ColFin’s rights. If that’s so, then the proceeds from the sale must be distributed among Trinity’s other creditors. The bankruptcy judge and district judge concluded, however, that Trinity did not obtain rights from the 2013 filing, for it was unilateral and without consideration. It therefore was not a contract, and because no one (including Trinity) detrimentally relied on the release, ColFin could rescind it. Trinity relies on this clause in the mortgage: “Lender shall not be deemed to have waived any rights under this Mortgage unless such waiver is given in writing and signed by Lender.” Trinity treats this as if it read: “Lender shall be deemed to have irrevocably waived any rights under this mortgage whenever it or its agent signs a written document to that effect.” But that’s not what the clause provides.

According to Trinity, In re Motors Liquidation Co., 777 F.3d 100 (2d Cir. 2015), shows that a mistaken release cannot be undone. That may be true if, as in Motors Liquidation, the error comes to light only after bankruptcy. The Bankruptcy Code gives the Trustee or debtor in possession the rights of a hypothetical lien creditor. 11 U.S.C. §544(a)(1). Because a mistaken release in Illinois allows third parties to take effective security interests if they act before the release is rescinded, a mistake not caught before the date of the bankruptcy filing brings §544(a)(1) into play and prevents the secured creditor from regaining its original position. That’s what happened in the Second Circuit’s case, leaving the secured creditors to argue that the release (which all conceded to be mistaken) should be disregarded because it had been unauthorized. The Second Circuit concluded that the release had been authorized, so it counted—and §544(a)(1) did the remaining work. But ColFin caught the problem before Trinity filed its bankruptcy petition, so a hypothetical lien perfected on the date of the bankruptcy would have been junior to ColFin’s interest.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Keycie A. Street

Case No.: 18-1209

Officials: ROVNER, HAMILTON, and BARRETT, Circuit Judges.

Focus: 4^th Amendment Violation

On October 24, 2015, law enforcement officers in Pewaukee, Wisconsin were searching for two African‐American men who moments before had committed an armed robbery. The robbers had been tracked to the parking lot of a nearby Walmart store. An officer stopped and questioned appellant Keycie Street, the only African‐American man in the crowded Walmart. Street was not arrested then, but during the stop, he provided identifying information that helped lead to his later arrest for the robbery.

Street contends that the stop violated his Fourth Amendment rights because he was stopped based on just a hunch and his race and sex. We disagree. The officers stopped Street based on much more information than his race and sex. They did not carry out a dragnet that used racial profiling. Rather, the police had the combination of Street being where he was, when he was there, and one of a handful of African‐American men on the scene, thus fitting the description of the men who had committed an armed robbery just minutes before. That information gave the officers a reasonable suspicion that Street may have just been involved with an armed robbery, thus authorizing the stop. See generally Terry v. Ohio, 392 U.S. 1 (1968); United States v. Arthur, 764 F.3d 92, 97–98 (1st Cir. 2014) (affirming denial of motion to suppress results of Terry stop in similar robbery case). We conclude by addressing a procedural issue that arose from the district court’s reference of Street’s motion to suppress to a magistrate judge for a report and recommendation under 28 U.S.C. § 636(b). The magistrate judge recommended denying the motion. The government did not need to file its own objection to the recommendation to argue that the motion to suppress should also be denied on another theory that the magistrate judge had rejected. We affirm Street’s conviction.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: Rebecca J. Faude v. Wisconsin Employment Relations Commission

Case No.: 2017AP842

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Wrongful Termination

Rebecca Faude appeals a circuit court judgment affirming a Wisconsin Employment Relations Commission (WERC) decision that reversed an examiner’s order concerning Faude’s termination from employment. We conclude the evidence supports WERC’s finding that Faude was terminated because she engaged in workplace misconduct and that Clark County did not commit any prohibited practices when it terminated Faude.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Ronnel Fitzgerald

Case No.: 2017AP1307-CR

Officials: Stark, P.J, Hruz and Seidl, JJ.

Focus: Sentence Modification

This is another in a series of pro se postconviction motions filed by Ronnel Fitzgerald. His latest motion claims the circuit court’s rationale for an accomplice’s sentence is a new factor warranting modification of Fitzgerald’s sentence. We affirm the court’s conclusion that nothing new has been presented and Fitzgerald’s claim is procedurally barred because he could have raised it in any of his many prior postconviction motions. Accordingly, we affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Blake Lee Harrison

Case No.: 2017AP1811

Officials: STARK, P.J.

Focus: Statutory Interpretation

Blake Lee Harrison was cited for operating a motor vehicle with a detectable amount of a restricted controlled substance in his blood, contrary to WIS. STAT. § 346.63(1)(am). Harrison filed a motion asserting that § 346.63(1)(am) is unconstitutional because it does not require the State to prove either impairment or intent. The circuit court agreed that § 346.63(1)(am) is unconstitutional, and it therefore dismissed the citation.

The State now appeals, arguing the circuit court’s decision is inconsistent with State v. Luedtke, 2015 WI 42, 362 Wis. 2d 1, 863 N.W.2d 592, and State v. Smet, 2005 WI App 263, 288 Wis. 2d 525, 709 N.W.2d 474. We agree. Those cases expressly held that WIS. STAT. § 346.63(1)(am) is constitutional even though the State is not required to prove impairment or intent. We also reject Harrison’s argument—raised for the first time on appeal—that § 346.63(1)(am) is unconstitutionally vague. Accordingly, we reverse the order dismissing Harrison’s citation and remand for further proceedings.

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WI Court of Appeals – District III

Case Name: Petitioner v. Arthur Woller

Case No.: 2017AP2074

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Sufficiency of Evidence

Arthur Woller appeals an order granting a domestic abuse injunction prohibiting him from, among other things, contacting his wife, Deanna, and from possessing a firearm until the injunction’s expiration on September 6, 2021. We conclude the circuit court’s comments at the decision hearing were sufficient to demonstrate its factual findings and the reasons for its decision to issue the injunction. We also conclude the order was supported by adequate facts of record, given that the court found Deanna’s testimony credible. Consequently, we affirm.

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WI Court of Appeals – District III

Case Name: Marathon County v. C.M.L.

Case No.: 2017AP2220

Officials: STARK, P.J.

Focus: Involuntary Commitment – Sufficiency of Evidence

C.M.L. appeals an order for his involuntary WIS. STAT. ch. 51 commitment. He argues Marathon County failed to present sufficient evidence to prove that he was dangerous to himself or others under WIS. STAT. § 51.20(1)(a)2. We disagree and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Mao T. Xiong

Case No.: 2017AP2306-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Statutory Interpretation – Restitution

Mao Xiong appeals from an order denying his motion to vacate a restitution order entered five years after his judgment of conviction. Xiong contends the restitution order was issued in violation of WIS. STAT. § 973.20(13)(c). We conclude the record is currently insufficient to provide a basis for the restitution award. We therefore reverse and remand for further proceedings.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Donna R. Daniels

Case No.: 2017AP2514-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Ineffective Assistance of Counsel

Donna Daniels appeals a judgment of conviction, entered following her no-contest plea, for theft by an employee in a business setting. She also appeals the denial of her postconviction motion for resentencing. Daniels argues the State materially and substantially breached the terms of the parties’ plea agreement by recommending a withheld sentence and an imposed and stayed year in jail as a condition of probation to be used at the agent’s discretion, when the signed plea questionnaire said that the State would recommend an imposed and stayed jail sentence and “no conditional jail.” Daniels further contends her defense counsel provided constitutionally ineffective assistance by not objecting to the breach. We agree with Daniels in both respects. Accordingly, we reverse the circuit court and remand for resentencing by a different judge.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. James Michael Johnston

Case No.: 2018AP514-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Ineffective Assistance of Counsel

James Johnston appeals from a judgment convicting him of two felony drug charges, as well as a misdemeanor offense, and from an order denying his postconviction motion. Johnston claims: (1) the circuit court erred by denying his motion to suppress evidence based upon a lack of probable cause to support the issuance of a search warrant; and (2) his trial counsel provided ineffective assistance because he failed to raise additional grounds for suppression. We reject each contention and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Unquail T. Kennedy

Case No.: 2018AP560-CR

Officials: Kessler, P.J., Brash and Dugan, JJ.

Focus: Ineffective Assistance of Counsel

Unquail T. Kennedy appeals a judgment of conviction entered after a jury found him guilty of one count of first-degree reckless homicide while using a dangerous weapon as a party to a crime and one count of possessing a firearm as a person previously adjudicated delinquent for a felonious act. See WIS. STAT § 940.02(1), 939.63(1)(b), 939.05, 941.29(2)(b) (2013-14). Kennedy argues that his trial counsel provided ineffective assistance by failing to object to what he believes was improper cross-examination. We conclude that even if his trial counsel performed deficiently, Kennedy has failed to show he was prejudiced. Accordingly, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Calvin Lee Brown

Case No.: 2018AP766-CR

Officials: Kessler, P.J., Brennan and Dugan, JJ.

Focus: Probable Cause – Sufficiency of Evidence

Calvin Lee Brown appeals a judgment of conviction, entered upon guilty pleas, to one count of possession of heroin with intent to deliver and one count of human trafficking. Brown also appeals the order denying his postconviction motion for relief. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Deshawn J. Driver

Case No.: 2018AP870-CR

Officials: Brennan, Brash and Dugan, JJ.

Focus: Due Process Violation

Deshawn J. Driver appeals a judgment of conviction for armed robbery and an order denying his postconviction motion. Driver argues that he is entitled to a remand for a restitution hearing before a different judge. At the start of Driver’s restitution hearing, the trial court told defense counsel on the record, before hearing testimony from any witness, that the victim’s word “is more credible than your client’s words[.]” Later in the hearing, when defense counsel told the court that Driver and his co-defendant did not see “a lot” of the items the victim claimed were in the stolen car, the trial court said it would “take that without their testimony” and added, “That’s why I didn’t give them a chance to say it.” Driver argues that these statements constituted objective bias and violated his constitutional due process right to an impartial tribunal.

Based on the record, we conclude that Driver is entitled to a restitution hearing before a different judge. A defendant may rebut the presumption that a judge acted fairly, impartially, and without prejudice “by showing that the appearance of bias reveals a great risk of actual bias.” State v. Herrmann, 2015 WI 84, ¶3, 364 Wis. 2d 336, 867 N.W.2d 772. See also State v. Goodson, 2009 WI App 107, ¶¶1, 13, 18, 320 Wis. 2d 166, 771 N.W.2d 385 (holding that defendant was entitled to a new hearing before a different judge because “prejudging” the defendant’s sentence showed objective bias).

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WI Court of Appeals – District I

Case Name: Tamara Vallier v. Labor and Industry Review Commission, et al.

Case No.: 2018AP936

Officials: Kessler, P.J., Brennan and Brash, JJ.

Focus: LIRC Review – Abuse of Discretion

Tamara Vallier appeals an order of the circuit court, affirming a decision of the Labor and Industry Review Commission (LIRC), finding that Vallier is not entitled to worker’s compensation benefits. Vallier also contends that LIRC exceeded its authority by basing its decision on its erroneous factual finding that Vallier’s first report of neck pain was on December 22, 2010, to Dr. White, rather than on December 7, 2010, to Dr. Park. LIRC concedes the error, but contends that it was not material to its decision. Based on our reading of LIRC’s decision, we agree.

The challenged finding was not material because LIRC’s decision centered on its credibility determinations. LIRC found credible Dr. Lyons’s opinion that Vallier’s work incident could not have created the impact necessary to cause Vallier’s cervical spine herniation. Moreover, LIRC disregarded the other medical opinions because LIRC concluded that Vallier’s failure to report her August 2010 visit to her primary care doctor for right shoulder pain precluded her physicians from rendering accurate medical opinions about the cause of Vallier’s cervical spine condition. Neither finding related to when Vallier first reported her neck pain. We conclude that LIRC did not exceed its authority in rendering its decision. We affirm.

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WI Court of Appeals – District II

Case Name: Joan C. Pulkkila v. James M. Pulkkila

Case No.: 2018AP712-FT

Officials: Neubauer, C.J., Reilly, P.J., and Hagedorn, J.

Focus: Life Insurance – Constructive Trust

On August 25, 2009, James M. Pulkkila committed to keeping a $250,000 life insurance policy in full force naming his children as “sole and irrevocable primary beneficiaries” until the children reached adulthood as part of a marital settlement agreement (MSA). In 2014, James reneged and changed the beneficiary designation to his new wife. James died a year later, and the $250,000 was paid to his new wife. Joan C. Pulkkila, James’ former wife, appeals the denial of her motion for a constructive trust on behalf of the children.

The equities of this case mandate the creation of a constructive trust in favor of the children so as to accomplish the intent of the MSA. All of the requirements of a constructive trust have been satisfied: James’ new wife received and retained a benefit, which was unjust to James’ children who were denied their guaranteed means of support, and the aforementioned unjust enrichment was the result of James’ wrongful conduct in violating the MSA. Regardless of James’ motive, his designation of his new wife to the exclusion of his children was wrong and inequitable under the terms of the MSA. We also conclude that the remedy provided in the MSA (a lien against the estate) is equally unjust and not a viable remedy as James failed to fund his estate in an amount sufficient to provide the equivalent support for his children. In light of Wisconsin’s strong public policy in favor of properly supporting the children of a dissolving marriage, see Ondrasek v. Tenneson, 158 Wis. 2d 690, 695, 462 N.W.2d 915 (Ct. App. 1990), James’ new wife “in equity and good conscience should not be entitled to beneficial enjoyment” of the insurance proceeds, Wilharms, 93 Wis. 2d at 679. Equity requires the imposition of a constructive trust. We reverse the court’s denial of a constructive trust.

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WI Court of Appeals – District II

Case Name: J.P. Michaels, LLC, v. Sun Seekers by Rosie, et al.

Case No.: 2018AP954

Officials: HAGEDORN, J.

Focus: Jurisdiction

J.P. Michaels, LLC, appeals from the circuit court’s order denying its motion for reconsideration. Because that motion did not raise an issue that had not already been determined by the circuit court. Rosie’s Sunseekers asserts that this court is without jurisdiction to hear this appeal because J.P. Michaels’s motion for reconsideration did not raise any new issues. We agree. We are without jurisdiction and must dismiss the appeal.

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WI Court of Appeals – District II

Case Name: Ozaukee County v. R.T.H

Case No.: 2018AP1317

Officials: GUNDRUM, J.

Focus: Sufficiency of Evidence – Involuntary Commitment

R.T.H. appeals from an order for involuntary commitment pursuant to WIS. STAT. ch. 51. He asserts “Ozaukee County fail[ed] to meet its burden to prove by clear and convincing evidence that R.T.H. was dangerous under Chapter 51.”3 We disagree and affirm.

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WI Court of Appeals – District IV

Case Name: Charles Rayford v. Community Development Authority of the City of Madison

Case No.: 2017AP1858

Officials: Lundsten, P.J., Kloppenburg and Fitzpatrick, JJ.

Charles Rayford received housing assistance benefits through a federal program administered by the Community Development Authority of the City of Madison (CDA). Because of a program rule violation by Rayford, the CDA notified Rayford that his benefits would be terminated. Rayford appealed that decision, and a hearing officer upheld the CDA’s decision to terminate Rayford’s benefits. Rayford brought a certiorari action in circuit court, and the court remanded for a second hearing. Upon remand, the hearing officer again upheld the CDA’s decision to terminate Rayford’s benefits. Rayford filed a second certiorari action, and the circuit court again remanded the matter. This time a different hearing officer reversed the CDA’s termination decision and ordered that Rayford’s benefits be commenced again.

Having ultimately prevailed in obtaining reinstatement of his benefits, Rayford initiated, pursuant to 42 U.S.C. § 1983, this action in the Dane County Circuit Court for damages related to the loss of his housing assistance benefits for a portion of the time he was denied benefits. The parties filed cross-motions for summary judgment. The circuit court granted summary judgment in favor of the CDA and dismissed Rayford’s claims. Rayford appeals. We affirm the order of the circuit court and conclude that the CDA did not violate Rayford’s constitutional rights because: (1) we reject Rayford’s argument that the actions of the CDA were not random and unauthorized; and (2) Rayford had available to him an adequate post-deprivation remedy of certiorari review in state court.

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WI Court of Appeals – District IV

Case Name: Greg Bakkenstuen, et al. Lepke Holdings LLC, et al.

Case No.: 2017AP2500

Officials: Sherman, Blanchard and Kloppenburg, JJ.

Focus: Fair Labor Standards Act Violation

Lepke Holdings and Bill Lepke Trucking LLC (collectively, Lepke) appeal an order of the circuit court granting summary judgment in favor of Greg Bakkestuen, David Winchell, and Brian Jensen (collectively, the drivers). The drivers, who were all employed by Lepke as dump truck drivers, sued Lepke seeking compensation for time that the drivers devoted to particular tasks, for which the drivers argue Lepke should have, but did not, pay them (“the unpaid time”). The circuit court determined that the unpaid time was compensable work time for which the drivers are owed additional wages. This ruling included the court’s rejection of Lepke’s argument that the drivers are not entitled to this compensation because Lepke met minimum wage requirements. Separately, the court determined that certain overtime hours for which the drivers were not paid should be paid at the then-prevailing hourly wage, which was higher than the drivers’ regular hourly wage. We affirm on each issue.

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WI Court of Appeals – District IV

Case Name: Capable Canines of Wisconsin v. Aubrey Greene

Case No.: 2018AP510

Officials: LUNDSTEN, P.J.

Focus: Court Error – Damages

This small claims case involves a dispute over a service dog formerly owned by Capable Canines of Wisconsin and fostered by Aubrey Greene. Greene, who ultimately kept the dog, appeals a judgment of the circuit court awarding Capable Canines its request for $5,000 in damages. Greene concedes that she converted Capable Canines’ property, but argues that the circuit court erred in awarding damages higher than the fair market value of the dog at the time of the conversion. I disagree and affirm.

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WI Court of Appeals – District IV

Case Name: Marquette County v. Christopher Patrick Bray

Case No.: 2018AP665

Officials: SHERMAN, J.

Focus: Motion to Suppress – Miranda Waiver

Christopher P. Bray appeals from a judgment of conviction for operating while intoxicated (OWI), first offense, contrary to WIS. STAT. § 346.63(1)(a). Bray contends that the circuit court erred in denying his motion to suppress evidence, which included statements made by him during a traffic stop on the basis that he was not provided a warning required by Miranda v. Arizona, 384 U.S. 436 (1966) before he made the statements he claims should have been suppressed. The circuit court concluded that Bray was not in custody when Bray made the statements and, therefore, no warning was required under Miranda. I agree and affirm.

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WI Court of Appeals – District III

Case Name: Brown County Human Services v. B.P., et al.  

Case No.: 2018AP1259; 2018AP1278

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Termination of Parental Rights

B.P. and T.F. appeal partial summary judgment orders finding that grounds exist to terminate their parental rights. The circuit court concluded, under WIS. STAT. § 48.415(1)(a)3. (2017-18), that B.P. and T.F. each abandoned their daughter, Allie.

T.F. alleges the circuit court erred in concluding the Brown County Human Services Department (the Department) properly pleaded that she abandoned Allie under WIS. STAT. § 48.415(1)(a)3. (hereinafter, “subd. 3.”). She argues the Department failed to state a claim for which relief could be granted because it pleaded a legally inapplicable ground for the termination of her parental rights. Specifically, T.F. contends that “[i]f the government seeks to terminate a parent’s rights on grounds of abandonment in a case where an out-of-home [Child in Need of Protection or Services (CHIPS)] order is in place,” it is limited to proceeding under § 48.415(1)(a)2. (hereinafter, “subd. 2.”), which specifically references such cases, and it may not proceed under subd. 3., which contains no such reference. In addition, T.F. argues that subd. 3.’s abandonment ground was not applicable because one of its elements—that the child was “left” by a parent with another person—cannot be met given that Allie was involuntarily removed from T.F.’s home pursuant to a CHIPS order. T.F. also contends that the Department’s petition to terminate her parental rights under the subd. 3. abandonment ground violates her constitutional right to equal protection. Finally, both T.F. and B.P. allege the court erred by granting the Department’s partial summary judgment motion because genuine issues of material fact exist as to their statutory good cause defenses for abandoning Allie.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Robert T. Malloy

Case No.: 2019 WI 16

Focus: Attorney Disciplinary Proceedings

We review a report filed by Referee Dennis J. Flynn recommending that the court reinstate the license of Robert T. Malloy to practice law in Wisconsin with certain conditions. Upon careful review of the matter we agree that Attorney Malloy’s license should be reinstated with certain conditions, as described herein. We hold in abeyance until further order of the court our determination as to whether Attorney Malloy should be required to pay the full costs of the reinstatement proceeding, which are $6,362.17 as of December 4, 2018.

Affirmed

Concur:

Dissent:

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WI Supreme Court

Case Name: Office of Lawyer Regulation v. Melinda Alfredson

Case No.: 2019 WI 17

Focus: Attorney Disciplinary Hearing

We review the report of the referee, Attorney John Nicholas Schweitzer, recommending that the court suspend the Wisconsin law license of Attorney Melinda Alfredson for 90 days and order her to pay the full costs of this disciplinary proceeding. The referee wrote the report after Attorney Alfredson and the Office of Lawyer Regulation (OLR) entered into a stipulation concerning Attorney Alfredson’s misconduct in two client matters and her failure to cooperate with the OLR’s investigation into her misconduct. Neither party has appealed from the referee’s report and recommendation, and thus our review proceeds under Supreme Court Rule (SCR) 22.17(2).

We agree that Attorney Alfredson’s professional misconduct warrants a 90-day suspension. We further agree that Attorney Alfredson should pay the full costs of this matter, which total $2,649.59 as of November 15, 2018. No restitution was sought and none is ordered.

Affirmed

Concur:

Dissent:

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WI Supreme Court

Case Name: West Bend Mutual Insurance Company v. Ixthus Medical Supply, Inc., et al.

Case No.: 2019 WI 19

Focus: Insurance Claim – Duty to Defend

In this duty to defend case, West Bend Mutual Insurance Company asks us to reverse the court of appeals’ decision holding that the allegations in Abbott Laboratories’ complaint against Ixthus Medical Supply, Inc. alleged a potentially covered advertising injury, and as a result, triggered West Bend’s duty to defend under the commercial general liability policy West Bend issued to Ixthus. West Bend argues the court of appeals erred when it determined: (1) Abbott’s complaint2 alleged a causal connection between the advertising activity and injury; and (2) the knowing violation exclusion did not apply. West Bend further contends that the criminal acts exclusion applies, thereby removing any duty to defend, or alternatively that application of the fortuity doctrine, public policy, and the reasonable expectation of an insured each independently eliminates its duty to defend.

We hold the allegations in Abbott’s complaint fall within the initial grant of coverage under the “personal and advertising injury liability” provision of the commercial general liability insurance policy West Bend issued to Ixthus. We further hold that neither the knowing violation nor the criminal acts exclusions apply to remove West Bend’s duty to defend. Finally, we do not address West Bend’s argument that the fortuity doctrine, public policy, and the reasonable expectation of an insured eliminate its duty to defend because West Bend failed to adequately raise or develop these contentions. We affirm the decision of the court of appeals.

Affirmed

Concur:

Dissent:

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Supreme Court Digests

United States Supreme Court

Case Name: Jim Yovino v. Aileen Rizo

Case No.: 18-272

Focus: Validity of Posthumous Judge Vote

The petition in this case presents the following question: May a federal court count the vote of a judge who dies before the decision is issued? A judge on the United States Court of Appeals for the Ninth Circuit, the Honorable Stephen Reinhardt, died on March 29, 2018, but the Ninth Circuit counted his vote in cases decided after that date.* In the present case, Judge Reinhardt was listed as the author of an en banc decision issued on April 9, 2018, 11 days after he passed away. By counting Judge Reinhardt’s vote, the court deemed Judge Reinhardt’s opinion to be a majority opinion, which means that it constitutes a precedent that all future Ninth Circuit panels must follow. See United States v. Caperna, 251 F. 3d 827, 831, n. 2 (2001). Without Judge Reinhardt’s vote, the opinion attributed to him would have been approved by only 5 of the 10 members of the en banc panel who were still living when the decision was filed. Although the other five living judges concurred in the judgment, they did so for different reasons. The upshot is that Judge Reinhardt’s vote made a difference. Was that lawful?

Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority. That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death. But federal judges are appointed for life, not for eternity. We therefore grant the petition for certiorari, vacate the judgment of the United States Court of Appeals for the Ninth Circuit, and remand the case for further proceedings consistent with this opinion.

Vacated and remanded. Certiorari granted.

Dissenting:

Concurring: JUSTICE SOTOMAYOR concurs in the judgment.

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United States Supreme Court

Case Name: Nutraceutical Corporation. v. Troy Lambert

Case No.: 17-1094

Focus: Statue of Limitations

To take an immediate appeal from a federal district court’s order granting or denying class certification, a party must first seek permission from the relevant court of appeals “within 14 days after the order is entered.” Fed. Rule Civ. Proc. 23(f ). This case poses the question whether a court of appeals may forgive on equitable tolling grounds a failure to adhere to that deadline when the opposing party objects that the appeal was untimely. The applicable rules of procedure make clear that the answer is no.

Reversed and remanded

Dissenting:

Concurring:

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United States Supreme Court

Case Name: Budha Ismail Jam et al. v. International Finance Corporation

Case No.: 17-1011

Focus: Statutory Interpretation – IOIA

The International Organizations Immunities Act of 1945 grants international organizations such as the World Bank and the World Health Organization the “same immunity from suit . . . as is enjoyed by foreign governments.” 22 U. S. C. §288a(b). At the time the IOIA was enacted, foreign governments enjoyed virtually absolute immunity from suit. Today that immunity is more limited. Most significantly, foreign governments are not immune from actions based upon certain kinds of commercial activity in which they engage. This case requires us to determine whether the IOIA grants international organizations the virtually absolute immunity foreign governments enjoyed when the IOIA was enacted, or the more limited immunity they enjoy today.

Respondent International Finance Corporation is an international organization headquartered in the United States. The IFC finances private-sector development projects in poor and developing countries around the world. About 10 years ago, the IFC financed the construction of a power plant in Gujarat, India. Petitioners are local farmers and fishermen and a small village. They allege that the power plant has polluted the air, land, and water in the surrounding area. Petitioners sued the IFC for damages and injunctive relief in Federal District Court, but the IFC claimed absolute immunity from suit. Petitioners argued that the IFC was entitled under the IOIA only to the limited or “restrictive” immunity that foreign governments currently enjoy. We agree.

Reversed and remanded

Dissenting: BREYER, J., filed a dissenting opinion.

Concurring: ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS, GINSBURG, ALITO, SOTOMAYOR, KAGAN, and GORSUCH, JJ., joined

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United States Supreme Court

Case Name: Gilberto Garza v. Idaho

Case No.: 17-1026

Focus: Appeal Waiver

In Roe v. Flores-Ortega, 528 U. S. 470 (2000), this Court held that when an attorney’s deficient performance costs a defendant an appeal that the defendant would have otherwise pursued, prejudice to the defendant should be presumed “with no further showing from the defendant of the merits of his underlying claims.” Id., at 484. This case asks whether that rule applies even when the defendant has, in the course of pleading guilty, signed what is often called an “appeal waiver”—that is, an agreement forgoing certain, but not all, possible appellate claims. We hold that the presumption of prejudice recognized in Flores Ortega applies regardless of whether the defendant has signed an appeal waiver.

Decision

Dissenting: THOMAS, J., filed a dissenting opinion, in which GORSUCH, J., joined, and in which ALITO, J., joined as to Parts I and II.

Concurring: SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, KAGAN, and KAVANAUGH, JJ., joined

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United States Supreme Court

Case Name: Vernon Madison v. Alabama

Case No.: 17-7505

Focus: Statutory Interpretation – 8^th Amendment

The Eighth Amendment, this Court has held, prohibits the execution of a prisoner whose mental illness prevents him from “rational[ly] understanding” why the State seeks to impose that punishment. Panetti v. Quarterman, 551 U. S. 930, 959 (2007). In this case, Vernon Madison argued that his memory loss and dementia entitled him to a stay of execution, but an Alabama court denied the relief. We now address two questions relating to the Eighth Amendment’s bar, disputed below but not in this Court. First, does the Eighth Amendment forbid execution whenever a prisoner shows that a mental disorder has left him without any memory of committing his crime? We (and, now, the parties) think not, because a person lacking such a memory may still be able to form a rational understanding of the reasons for his death sentence. Second, does the Eighth Amendment apply similarly to a prisoner suffering from dementia as to one experiencing psychotic delusions? We (and, now, the parties) think so, because either condition may—or, then again, may not—impede the requisite comprehension of his punishment. The only issue left, on which the parties still disagree, is what those rulings mean for Madison’s own execution. We direct that issue to the state court for further consideration in light of this opinion.

Vacated and remanded

Dissenting: ALITO, J., filed a dissenting opinion, in which THOMAS and GORSUCH, JJ., joined.

Concurring: KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, and SOTOMAYOR, JJ., joined.

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